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UAS Journalism Advocates Caution Against New UAS-Specific Privacy Laws

Unmanned aircraft systems (“UAS”) have been used to capture dramatic aerial footage of protests in Ukraine, Olympic events in Russia, and earthquake damage in Nepal. In the United States, however, professional journalists are generally limited to using manned aircraft—typically helicopters—to gather aerial photography. But, change is in the air: the FAA is using its more streamlined Section 333 exemption process to allow commercial operation of small UAS (“sUAS”), and now permits the media’s use of UAS photography from citizen journalists. As the news media continues to seek FAA approval and address the FAA’s safety concerns related to UAS newsgathering, they are also looking to address the privacy concerns related to the fast growth of UAS operations and UAS photography.

Media interest groups weighed-in when the National Telecommunications and Information Administration (“NTIA”) sought comments on the design of a multi-stakeholder engagement process to develop best practices for privacy, accountability, and transparency issues regarding commercial and private UAS use. Advocates for UAS journalism are urging the federal government to avoid crafting new technology-specific privacy laws they say would stifle the potential newsgathering benefits of UAS.

The National Association of Broadcasters and the Radio Television Digital News Association (the “Associations”) submitted joint comments, cautioning that without careful consideration and drafting, new and additional privacy guidelines could chill free speech activities, particularly breaking-news reporting. The Associations touted the yet-to-be realized benefits of UAS, noting that “operating a helicopter for news coverage costs approximately $1,000 per hour, including the expense of personnel required to fly it,” whereas UAS could gather aerial images for as low as $300. They argued that UAS would enable more news organizations to offer more diverse aerial footage with unique perspectives unachievable by helicopters with less risk to pilots and passengers.

The Associations also contended that concerns about the possible privacy impact of new technologies, such as UAS, are not novel. They cited privacy fears ignited in 1890 by the invention of “instantaneous photography,” and more recently, by the use of helicopters, high resolution satellites, and telephoto lenses. The Associations asserted that “the public ultimately have benefited from these innovations,” despite the initial apprehension.

As an alternative to new federal laws, the Associations suggested the NTIA draw from existing industry-drafted ethical codes of conduct and best practices as a starting point for voluntary federal guidelines, noting that the news industry has a history of successfully adapting to rapidly evolving technology. The RTDNA Code of Ethics, National Press Photographers Association Code of Ethics, and Associated Press Media Editors Statement of Ethical Principles, among others, were provided as successful examples of industry self-regulation.

The News Media Coalition (the “Coalition”)—a consortium of 22 news media organizations including ABC, NBCUniversal, the Associated Press, and Sinclair Broadcast Group—also warned against adoption of federal laws that would impede journalists’ First Amendment rights. The Coalition asserted that existing state laws are robust enough to remedy UAS privacy concerns while safeguarding the First Amendment right to gather news. As examples, the Coalition pointed to the torts of “intrusion upon seclusion” and “public disclosure of private facts” as sufficient to address any concerns for either the manner of newsgathering or the content of publication—regardless of whether the photography was captured by traditional cameras, camera phones, telephoto lenses, or UAS photography. The Coalition also stated that “[s]tate criminal laws, prohibiting unlawful wiretaps, trespassing, stalking, harassment and Peeping Toms are vigorously applied by prosecutors and courts to punish people abusing technologies to invade people’s reasonable expectations of privacy.”

The next opportunity to participate in the multi-stakeholder process is the NTIA’s first UAS Privacy Multi-stakeholder Meeting, an “open and transparent forum to develop consensus best practices for utilization by commercial and private [UAS] operators.” The NTIA announced in March that it planned to convene the first public meeting in the Washington, D.C. metro area within 90 days of releasing its request for comments. However, the self-imposed deadline was June 2, 2015 and the agency has yet to publish the official meeting date. Those interested in attending (either in-person or via webcast with an NTIA-provided audio conference bridge) can submit an “Expression of Intent” on the NTIA’s website to help the agency determine space and technology requirements.